A blog devoted to the criminal laws regulating and punishing sexual violence

June 01, 2010

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can "correct" the outcome whenever it wants. So, it isn't much of a decision against SORNA or the AWA in any meaningful way.

I have to say that I was more than a little disappointed that Justice Alito, who had to address the Ex Post Facto issue in his dissent, disposed of it in a single footnote paragraph which lacked any substance. Here was his argument on the issue:

Petitioner makes the additional argument that interpreting §2250(a)(2)(B) to reach pre-enactment travel renders the statute anunlawful ex post facto law. See U. S. Const., Art. I, §9, cl. 3. Petitioner remained unregistered in Indiana five months after the promulgation of the regulation making SORNA applicable to persons with pre-SORNA sex-offense convictions. For essentially the reasons explained by the Court of Appeals, see United States v. Dixon, 551 F. 3d, at 585– 587, I would reject petitioner’s ex post facto argument.

Even though it isn't a majority opinion, that treatment is just sad. Judge Posner's lower court opinion of the Ex Post Facto Clause claim was based upon lower court cases that were inapplicable (because they applied in instances where Congress specifically declared that the crime was a "continuining offense"). To just adopt such a poorly developed argument without engaging any of the briefing on the issue seems weak.

Of course, everyone has noted the odd alignment of the Justices as Thomas, Alito, and Ginsburg formed the dissenting group. I think if more were at stake in the case, such a grouping would have been unlikely.

The wide applicability of this statute and lack of procedural safeguards distinguish it from state civil commitment laws previously upheld by the Supreme Court (this argument is presented in convincing detail in the NACDL amicus brief). In 1997, in Kansas v. Hendricks, the court upheld a controversial Kansas statute providing for the civil commitment of people deemed likely to commit "predatory acts of sexual violence" due to "mental abnormalities" or "personality disorders." But at least the Kansas law applied only to people previously convicted or charged with specified sex offenses and provided for jury trials in which alleged future dangerousness would have to be proved beyond a reasonable doubt.

Hendricks upheld the Kansas civil commitment scheme by a five-to-four vote, in a conventional liberal-conservative split. Justice Thomas wrote the majority opinion upholding the law, joined by Justices Rehnquist, Scalia, O'Connor, and Kennedy; Justice Breyer wrote the dissent, joined by Justices Ginsberg, Souter, and Stevens. In Comstock, however, the majority and dissent switched sides. Justice Breyer wrote for the majority, upholding a federal civil commitment statute that's less protective of individual rights than the state statute he would have struck down (he was joined by Ginsberg, Stevens, and Sotomayor; Kennedy, Roberts, and Alito concurred). Justice Thomas wrote the dissent, joined by Scalia.

What accounts for this switch? In Comstock, the court didn't address due process challenges to the federal civil commitment scheme; it was reviewing a decision by the Fourth Circuit Court of Appeals that struck down the federal statute as an unconstitutional exercise of congressional power, without reaching questions about due process (or other individual rights). So, putting individual rights issues aside, Justice Breyer adopted the expansive view of federal authority advocated by Solicitor General Kagan. (At the Volokh Conspiracy, Orin Kerr described Kagan's position as "shockingly broad: She argued that the Constitution gives the federal government the general power 'to run a responsible criminal justice system,' and that anything Congress plausibly thought a part of running a 'responsible criminal justice system' was within the scope of federal power.") Justices Thomas and Scalia, in keeping with a more literal, or originalist, reading of Article I congressional authority, and a view of the federal government as one of explicitly enumerated powers, would have denied the federal government civil commitment powers similar to those they afforded the states.

So there is some logic to these oddly contrasting positions represented by Justices Breyer and Thomas in their reviews of state and federal civil commitment statutes, respectively. Technical, constitutional arguments aside, however, I do wonder how Justices Thomas and Scalia would explain, in lay terms, why they oppose federal power to detain people deemed "sexually dangerous" in civil commitment proceedings but support federal power to criminalize mere possession or even false advertising of child porn, imposing long sentences on people who have never committed or even been suspected of committing any actual sexual offenses.

In any case, the court may get another chance to review the federal civil commitment provisions of the Adam Walsh Act. The Comstock case will return to the Fourth Circuit, where, as Justice Breyer observed, Graydon Earl Comstock (et al) may raise due process, equal protection claims or any other individual rights claims on which the court has not yet ruled. But even if the case eventually wends its way back to the Supreme Court, and even if Justice Breyer switches sides again and somehow takes four of his colleagues with him, much damage has been done. Federal criminal jurisdiction has expanded dramatically in the last few decades, with the blessings of conservatives and liberals alike. Now, thanks to the ruling in U.S. v Comstock, that power seems practically infinite: federal authorities can imprison people indefinitely on suspicions of future dangerousness. It's not just suspected sex offenders or terrorists who are at risk.

May 21, 2010

The respondents in this case are federal prisoners who were about to be released when the government instituted civil commitment proceedings against them under Section 4248. When the respondents challenged (among other things) the constitutionality of the government’s actions, the district court held (again, among other things) that the statute exceeded Congress’s powers under Article I of the Constitution, and the Fourth Circuit affirmed on this ground.

Justice Kennedy concurred in the judgment. In a separate opinion, he emphasized that the Necessary and Proper Clause has limits, and he sought to distance himself from what he regarded as some of the Court’s broadest language. In particular, he underscored that the “rational relationship” test at issue here is much more demanding than the “rational basis” test used in due process cases.

Justice Alito also concurred in the judgment. In his view, there is a “substantial link” between Section 4248 and Congress’s enumerated powers, thereby rendering the statute a necessary and proper means of implementing federal criminal law statutes authorized by Congress’s other enumerated powers.

May 19, 2010

Although the U.S. Supreme Court definitively ruled that the federal government has the power under the Necessary and Proper Clause to keep "sexually dangerous persons" in custody after the expiration of their sentence, both the majority and dissenting opinions noted some issues left unresolved by the decision. From Justice Breyer's opinion:

In resolving [the question presented], we assume, but we do not decide, that other provisions of the Constitution -- such as the Due Process Clause -- do not prohibit civil commitment in these circumstances. Cf. Hendricks, 521 U.S. 346; Addington v. Texas, 441 U.S. 418 (1979). In other words, we assume for argument's sake that the Federal Constitution would permit a State to enact this statute, and we ask solely whether the Federal Government, exercising its enumerated powers, may enact such a statute as well. On that assumption, we conclude that the Constitution grants Congress legislative power sufficient to enact § 4248.

This seems to me an odd way to frame the argument, since it is established that states can act in ways in which the federal government cannot. Justice Thomas' dissenting opinion also mentions the many questions left unanswered by the Comstock decision, although he choose to articulate the questions in laundry list fashion. From Justice Thomas' opinion:

The Court’s newly minted test cannot be reconciled with the [Necessary and Proper] Clause’s plain text or with two centuries of our precedents interpreting it. It also raises more questions than it answers. Must each of the five considerations exist before the Court sustains future federal legislation as proper exercises of Congress’ Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice, which three or four are imperative? At a minimum, this shift from the two-step McCulloch framework to this five-consideration approach warrants an explanation as to why McCulloch is no longer good enough and which of the five considerations will bear the most weight in future cases, assuming some number less than five suffices. (Or, if not, why all five are required.) The Court provides no answers to these questions.

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. . . I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

There are many different angles from which someone could attack the majority opinion issued today in United States v. Comstock. I am on record previously and continue to believe that Section 4248 is an unconstitutional exercise of federal power. In this case, though, I want to focus on the factual claim by the majority and the concurring opinions that 4248 was necessary and proper to execute an enumerated power. From the majority:

Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

While Justice Alito's concurrence believes that the majority holding might be too broad, it affords little retreat on the issue of whether 4248 was necessary and proper:

The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.

What seems clear from the above quotes is the Court was persuaded that 4248 was necessary (but not absolutely necessary) and proper for effectuation of an enumerated power (the Commerce Clause) because it was intertwined with the administration of a federal prison system. That's nonsense. It seems like the Court was unwilling to acknowledge what everyone who supported this statute knows - 4248 was a means to incarcerate sex offenders after their release. Thus the period of jurisdictional control of the offender would be indefinitely extended. And while the test case was for a prisoner being released, there will surely be persons who have merely been arrested or detained for immigration purposes soon diverted to civil commitment facilities. The Court ultimately relies on analogies to past cases, but I just can't wrap my head around the idea that, even under an expansive view of the Necessary and Proper Clause, there is reason for 4248 in regards to the administration of the federal criminal justice system. This was a clear extension of federal power that was neither necessary nor proper as the federal prison system was wholly unaffected by the lack of 4248 before it was passed. While the outcome was expected, it is still disappointing to see in writing.

The opinion is out. Not surprisingly, the government won 7-2 (Kagan gets a victory at oral argument). I thought Justice Sotomayor would join the dissent based upon the oral argument, but it looks like Orin Kerr called the lineup exactly right with only Justices Scalia and Thomas dissenting (if my memory is right). Despite my recent low-blogging-level, I will have plenty of Comstock coverage throughout the day. For now, though, check out these links:

Michael Piccarreta contends the Adam Walsh Child Protection and Safety Act is unconstitutional as a whole and as it applies to his client, Jefferson Sutton Stahl, because it prevents individual judges from determining whether electronic monitoring is needed.

Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.

His is alleged to have purchased four DVDs containing child pornography in June, one year after retiring from the Tucson Police Department following a 32-year career.

Court records indicate Stahl began communicating online in June 2008 with an undercover U.S. Postal Inspector operating an Internet forum described as "a special group for daddys who love young little munchkins!"

Piccarreta told U.S. Magistrate Judge Thomas Ferraro deciding whether a defendant requires electronic monitoring should be up to the judge, not up to legislation.

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape.

The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

February 24, 2010

The oral argument not particularly noteworthy in terms of argument advancement. I was surprised at several points where the justices didn't seem to know some basic points about the background of the case. Justice Breyer didn't know that every state had a sex offender registry even though that was the case when the Court decided Smith v. Doeyears ago. And everyone was focusing on the purposes of SORNA in a very basic sense. I think the most interesting exchange in the argument was when Justice Scalia was pressing the government:

JUSTICE SCALIA: I don't know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That's the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that -- that would later justify registration. It seems to me you are just making up the -- the prior act that -- that triggers the interstate travel requirement.MR. GANNON: Well, I don't think that we are making it up, Justice Scalia.JUSTICE SCALIA: Well, what text do you base it on? One says "is required to register," and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it's after you commit the offense that you must travel on interstate. Where do you get that from?MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders.

I wished Justice Scalia had pushed the point one step further. Why exactly is it an anomaly for state and federal sex offenders to be treated in a different manner? If the only difference is based upon a different element which is jurisdictional in nature, a difference is not an anomaly - it is the essence of America's system of federalism. Of course, this is one of the problems with the Court only reviewing the statutory issue and Ex Post Facto claim (although the Ex Post Facto claim was barely mentioned in the argument). If the Court were also considering the Commerce Clause claim, the government would be in a pickle at the point of discussing the anomaly. However, Gannon was able to make an argument that seemed to quiet the Justices that he might not have otherwise been able to make.

Overall, I think Carr's side conceded an awful lot about the role of SORNA in our system. I understand why, since the claim they were focusing on was a statutory interpretation issue. However, the conflation of 2250(a) and the national registry really made the government's overall position easier to make. My prediction is a big loss for Carr on the statutory interpretation issue. Although I was an author of the Ex Post Facto brief, nothing from the hearing gave me any indication of how the Justices would approach that issue. I'm inclined to believe, though, that following the normal pattern the sex offender will lose and the Court will push the Ex Post Facto Clause a bit further to the side.